This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Mary J. Schuttloffel,





Mitzi Carroll,



Commissioner of Economic Security,




Filed February 5, 2002


Halbrooks, Judge



Department of Economic Security

File No. 18301


Mary J. Schuttloffel, 656 192nd Avenue NE, Cedar, MN 55011 (pro se relator)


Mitzi Carroll, 11900 Wayzata Boulevard, Suite 116-C, Minnetonka, MN 55305 (respondent)


Philip B. Byrne, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)




            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Mary Schuttloffel challenges the commissioner’s representative’s decision that relator was discharged due to employment misconduct, thereby disqualifying her from receiving unemployment benefits.  Because the record reasonably supports the commissioner’s conclusion, we affirm. 


Respondent Mitzi Carroll is an independent manufacturer’s representative who sells women’s jewelry and accessories to department stores.  Respondent hired relator Mary Schuttloffel as an office manager on August 15, 2000.  Relator was scheduled to work from 9:00 a.m. - 5:00 p.m. on Tuesdays, Wednesdays, and Thursdays.

Relator was often late to work.  The evidence showed that she was 15 minutes late on September 13; 45 minutes late on September 26; one hour late on September 27; 15 minutes late on September 28; and 30 minutes late on October 4.  Respondent talked with relator about her tardiness, and both agreed that they needed to modify relator’s hours to enable her to arrive on time.[1] 

            Effective October 11, relator’s hours were 10:00 a.m. - 6:00 p.m.  Respondent was in New York the week of November 7 and told relator to be on time because she would be alone in the office.  Nevertheless, relator was 15 minutes late on November 7.  The same day, relator left work early due to an insignificant snowfall.  Relator was 15 minutes late on November 22.  When relator arrived at work November 29, she told respondent that she might have to leave early due to the weather forecast.  It was that day that respondent discharged relator.

            Relator attempted to collect unemployment benefits from the Department of Economic Security, but the department found that relator was not entitled to benefits because her continued tardiness constituted employment misconduct.  An employee who is discharged for misconduct may not collect unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Relator appealed, and the unemployment law judge affirmed the department.  Relator appealed again, and the commissioner’s representative affirmed the unemployment law judge.  Relator now challenges the decision of the commissioner’s representative.


            This court treats decisions of the commissioner’s representative with “particular deference.”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We view the commissioner’s representative’s factual findings in the light most favorable to the decision and do not disturb them if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  The commissioner’s determination that an employee is disqualified for misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether an employee’s acts constitute misconduct is a question of law upon which this court is free to exercise its independent judgment.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Employment misconduct is defined as:

(1)              any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or

(2)              negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(1), (2) (2000). 

“[An] employer has a right to expect an employee to work when scheduled.”  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (citation omitted).  Chronic and excessive absenteeism and tardiness, even if not deliberate or willful, may constitute misconduct.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Excessive lateness or absenteeism demonstrates the employee’s disregard of the employer’s interest or lack of concern for the position.  Id.; see also McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (finding that employee who was tardy 13 times in 12 months and received two warnings committed employment misconduct).

Relator disputes the allegations of tardiness and argues that she did not commit employment misconduct.  Relator claims she was not late on September 26-28 and October 4 because the 10:00 a.m. - 4:30 p.m. schedule was in place.  Yet time sheets admitted into evidence indicate that relator reported to work at 9:45 a.m. on September 26; 10:00 a.m. on September 27; and 9:15 a.m. on September 28; thus making it unlikely that her 10:00 a.m. start time had taken effect.  The commissioner’s conclusion that relator was late September 26-28 is, therefore, warranted.  See Lolling, 545 N.W.2d at 377 (this court accepts the commissioner’s factual findings if evidence in the record reasonably supports them).  The record also supports the conclusion that relator’s 9:30 a.m. arrival on October 4 was late because she arrived to work at 9:00 a.m. on October 3 and 5. 

Although relator claims that she had no warning that her tardiness was troublesome, the record indicates that relator had notice that her tardiness caused problems for respondent.  Although relator disputes the degree of emphasis on tardiness in her discussions with respondent, she concedes that she had two conversations with respondent in which tardiness was discussed.  In addition, respondent testified that she altered relator’s hours to enable relator to be timely.   

            The record supports the conclusion that relator was consistently late to work.  In a three-month period consisting of three-day work weeks, relator was late seven times.  Relator also left work early without good cause.  The evidence in the record is sufficient to support the commissioner’s representative’s decision that relator committed misconduct and should be disqualified from receiving unemployment benefits.



[1] Relator and respondent modified relator’s hours to 10:00 a.m. – 4:00 or 4:30 p.m. prior to October 11, 2000.  The effective date of this modification is not clear from the record.